Rosander v. Copco Steel & Engineering Co.Rosander v. Copco Steel & Engineering Co.
Shirley Rosander is appealing the decision of the trial court which granted Copco’s motion for summary judgment thereby dis
At the time of the accident, Shirley’s husband, Darwin Rosander, was employed by Colip Brothers Electric Company. While working at Copco’s plant, he was struck in the back with a piece of wood by an employee of Copco, causing injury to his back, hip, and leg. Darwin received workmen’s compensation benefits from his employer. He settled his claim with Copco and at that time executed a release of all claims. Shirley was not a party to the release, and she filed a separate action against Copco for loss of consortium. The trial court granted Copco’s motion for summary judgment and stated in its written opinion:
“Inasmuch as the right of the wife is derivative of her husband’s right, it appears to this Court that a settlement by the husband of his claim is likewise a settlement of his spouse’s derivative suit and that the failure to settle both causes at the same time should bar a spouse from subsequently maintaining an independent action for loss of consortium.”
By this time it is well settled in Indiana that a wife has a cause of action for loss of consortium resulting from injury sustained by her husband from negligent acts of a third person.
Troue v. Marker
(1969),
It cannot be denied that a claim for loss of consortium is derivative in that without an injury to one spouse, the other spouse would have no action. As such, it is subject to some of the same defenses as the action from which it is derived.
Arthur v. Arthur
(1973),
Copco contends that joinder of the actions is required in the interest of judicial economy and to prevent the danger of double recovery and inconsistent verdicts. The argument concerning inconsistent verdicts is not well taken in this action. The situation at hand involves a release and a release is not dispositive of the merits of an action.
Troue v. Marker, supra, settled the problem of double recovery caused by loss of consortium claims. In Troue the Court said:
“We therefore hold that a wife in this state is entitled to recover for loss of consortium against a wrong-doer who has injured her husband, but she is not entitled to recover for loss of support due from the husband to such wife in such action.”252 N.E.2d at 806 .
Copco further argues that the Indiana Workmen’s Compensation Act, specifically the exclusive remedy provisions, precludes Shirley from bringing any action against it. This argument is not persuasive. IC 1971, 22-3-2-6 (Burns Code Ed.) and IC 1971, 22-3-2-13 (1981 Burns Supp.) must be construed together. Section 6 applies only to an employee and his employer.
Artificial Ice, etc., Co. v. Waltz
(1925),
Granted, mandatory joinder would promote judicial economy. However, judicial
“There will be situations in which it is not possible to join the causes of action for the single trial. Thus the impaired spouse’s cause of action may have been abated by death. Or the action of the impaired spouse may be barred by a workmen’s compensation act, which does not bar the deprived spouse’s action. Or the impaired spouse may have settled and released the claim for bodily harm without the knowledge of the deprived spouse. Or the impaired spouse may simply refuse to sue. There are no doubt other possible situations.
“It is possible to join the actions within the language of Subsection (2), however, in all situations in which the deprived spouse has had full opportunity to join in the impaired spouse’s action and assert a claim and has failed to do so. Thus if the impaired spouse has begun an action for bodily harm, and then settled it and given a release, and the deprived spouse has stood by throughout with full knowledge of the conduct, it has been possible to join in the action at any time before it has become barred by the release, and the deprived spouse cannot now be permitted to maintain a separate action.” Restatement, Second, Torts § 693.
The situation before us involves a settlement and release which were entered into without the knowledge of the non-injured spouse. While the trial court expressed its belief that such an occurrence is improbable, nonetheless, it is possible. Shirley was not a party to the release executed by Darwin and thus is not bound by it. She may pursue an independent action for loss of consortium and recover what damages she can prove, other than loss of support. None of the contentions raised by Copco presents a problem which necessitates mandatory joinder in this instance. Therefore, the summary judgment of the trial court is reversed and this cause of action is remanded for further proceedings.
Reversed and remanded.
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